The Constitution, Article II, Section 2, is clear. The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint,” justices to the Supreme Court. Just one problem: What does that mean?
Over the past few decades it’s come to mean a certain set of rituals: “courtesy visits” by the nominee to members of the Judiciary Committee; murder boards in the conference room of a K Street law firm, where the nominee rehearses evasive responses to verbose questions; and the elaborate set piece of the nominee standing in front of a table covered in green felt, facing a group of grandstanding lawmakers, swearing to tell the truth, blinking as a hundred cameras flash in her face.
Enough. Nominees to the Supreme Court should not appear before Congress. They should not meet with members of the Judiciary Committee for chitchat about their amazing life stories and how they’ll vote on Roe. They should give the committee copies of their past speeches and writings, their prior rulings, their tax filings, and their Twitter nicknames. Then they should get out of Washington and wait for confirmation.
This idea is less radical than it sounds. No nominee to the Court appeared before Congress until 1925, when Harlan Fisk Stone, then Attorney General, answered questions about his refusal to drop charges against a key player in the Teapot Dome scandal. Over the next 30 years, 17 nominations were sent to the Judiciary Committee but only three nominees testified. Roosevelt nominee Felix Frankfurter was against the idea. “I should think it not only in bad taste but inconsistent with the duties of the office for which I have been nominated for me to attempt to supplement my past record by present declarations. That is all I have to say.”
Except it wasn’t; Frankfurter ended up testifying twice over four days, refuting charges of Communism from members who were mostly upset with FDR for naming a Jew. Finally, Frankfurter declared he was not a Communist and, according to his lawyer, Dean Acheson, “People shouted, cheered, stood on chairs, and waved. The Chairman, banging his gavel, was inaudible.” The moment, Acheson wrote, was reenacted several times for the benefit of the newsreel.
The circus has come back to town a few times since then. Starting with John Marshall Harlan in 1955, all nominees have gone before the committee. The process has revealed a lot of things—which interest groups have clout, which senators especially like the sound of their own voices, which nominees perform best in the hot seat (hats off to you, John Roberts)—but tends to reveal little about judicial qualifications or anything else. And sometimes things just turn weird: pubic hair on a can of Coke, anyone?
There are, of course, benefits to the nominee appearing before the Senate. It offers a rare moment to teach Americans about the mysteries of the third branch of government, and also to compel Congress to perform, with transparency, its duty: doling out advice and consent. But along the way, this process has become a drama that sheds more heat than light. So now it is time to consider better ways to accomplish these goals, ways that don’t turn the appointment system into burlesque. The first step is for a president and nominee to just say no. For Sonia Sotomayor, it may be too late. For Barack Obama, who will likely have more vacancies to fill, it is not.